R v Thiyagarajah - [2019] SASC 84

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v THIYAGARAJAH
Criminal Trial by Judge Alone
[2019] SASC 84
Judgment of The Honourable Justice Lovell
24 May 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
The accused pleaded not guilty to the offence of murder but guilty to manslaughter. The prosecution did not accept that plea. The accused elected to be tried by a judge sitting without a jury. The issue at trial was provocation.
Whether the accused was provoked by the deceased - whether there was a loss of self-control - subjective test - gravity of the insult - cultural background of accused - whether the ordinary person could have lost self-control to same extent - objective test
Held:
1. The accused is guilty of murder.
Criminal Law Consolidation Act 1935 (SA) s 11; Juries Act 1927 (SA) s 7, referred to.
R v Baden-Clay [2016] HCA 35, distinguished.
Lindsay v The Queen (2015) 255 CLR 272; Stingel v The Queen (1990) 171 CLR 312; Masciantonio v The Queen (1995) 183 CLR 58; Dutton v The Queen (1979) 21 SASR 356; Green v The Queen (1997) 191 CLR 334; Moffa v The Queen (1977) 138 CLR 601, considered.

R v THIYAGARAJAH
[2019] SASC 84
LOVELL J:

On 3 March 2017 at Penfield Gardens the accused, Ganeshamoorthy Thiyagarajah (often referred to as Kabil in the evidence), repeatedly stabbed Mohammed Mansoor. Mr Mansoor sustained over 40 separate injuries, all consistent with having been caused by a knife. Mr Mansoor died at the scene from the injuries inflicted by the accused. The accused was charged with the murder of Mr Mansoor.
On arraignment, the accused pleaded not guilty to murder but guilty to the manslaughter of Mr Mansoor. The prosecution did not accept that plea in answer to the charge on the Information. Earlier the accused had elected to be tried by a judge sitting without a jury.[1] The trial of the accused on the charge of murder commenced before me, sitting without a jury, on 4 February 2019.
[1] Juries Act 1927 (SA) s 7.
Issues at trial
The accused, by his plea to manslaughter, admitted to killing Mr Mansoor. In any event, the accused gave evidence on oath at the trial and admitted to killing Mr Mansoor. The issue at trial was provocation. That is, the accused alleged he was provoked into killing Mr Mansoor by comments Mr Mansoor made. Although not relied upon by the accused, the possibility of self-defence or excessive self-defence was faintly raised on the evidence.
There were no eye witnesses to the stabbing. The prosecution case was circumstantial. The only evidence about provocation arose from statements made by the accused out of court and in the witness box. The credibility of the accused, and in particular his version of the events leading up to and including the stabbing, was also an important issue at the trial.
The use of interpreters
The accused is a refugee from Sri Lanka who speaks Tamil. His ability to understand and speak English is limited. The accused had a Tamil interpreter sitting next to him in the dock for the entire trial. All the evidence was interpreted for him as it occurred, including all the expert evidence. On occasions, the proceedings were adjourned for documents to be interpreted for the accused. In addition, I was informed that the instructing solicitor for the accused speaks fluent Tamil. The prosecution also called a number of Sri Lankan witnesses, all of whom required a Tamil interpreter.
The language difficulties led to the trial proceeding slowly. It became apparent, very early in the trial, that Tamil does not translate easily into English. That was accepted by counsel for the prosecution and the accused. My comment should not be seen as a criticism of the interpreters who I consider, as did counsel, performed their task competently and professionally. It was often difficult to understand a witness’s answer. Many questions had to be repeated or approached in a slightly different way. On occasions, concepts were not clearly understood by a witness, including the accused. That was not necessarily indicative of any attempt to mislead me; it was clearly a function of the difficulties in interpreting English into Tamil and vice versa.
In these circumstances, the demeanour of a witness, a concept which is problematic at the best of times, played little or no role in my assessment of the witnesses. When considering the evidence, I have borne in mind the difficulties mentioned. I have been careful not to necessarily accept a strictly literal interpretation of a witness’s answer.
Sri Lankan witnesses
The background leading up to the killing of Mr Mansoor consumed some time at trial. Acquaintances of the accused, all Tamil speakers, gave evidence relevant to the background. During the evidence, the witnesses were referred to by their nicknames. In my reasons, I will adopt the same course. I mean no disrespect to the witnesses in adopting this procedure.
The accused is known as Kabil. I will refer to him as the accused in these reasons although from time to time, when quoting from the transcript, he will be referred to as Kabil.
The deceased is Mohammed Mansoor. I will refer to him in these reasons as Mr Mansoor although on many occasions witnesses referred to him as Mohammed.
A number of Sri Lankan Tamil men who are variously friends or acquaintances of the accused and/or Mr Mansoor were called by the prosecution. All but one of these witnesses resided at 1 Heywood Street, Elizabeth North (‘Heywood Street address’) at the time of Mr Mansoor’s death.
The witnesses mentioned above and their nicknames are as follows:
Muralitharan Sunarci - known as Sim Sim;
Vijayakumar Illayathambi - known as Kumar;
Kalaiselvan Mahalingham - known as Selvan;
Thileepan Supaiya - known as Teacher;
Piratheepan Manokaran - known as Theepan; and
Kiyomarcoos Jacob - known as Kilmer.
Mr Muralitharan Sunarci, at the time of the incident, was living at 45 Broadacres Drive, Penfield Gardens (‘Broadacres Drive address’). He was well known to the persons living at the Heywood Street address.
Brief outline of the prosecution case
The prosecution case was entirely circumstantial as there were no witnesses to the act of stabbing. The prosecution relied upon expert forensic evidence, police evidence and statements made by the accused to the police and others about the events leading to the death of Mr Mansoor.
On 3 March 2017 at around 8.31pm police officers attended at the Broadacres Drive address. Mr Mansoor was observed to be lying in a pool of blood in the entrance hallway to the house; he was obviously dead. The accused was present at the scene and covered in blood. The police spoke to the accused with the assistance of an interpreter. He accused three of his former acquaintances of killing Mr Mansoor. The three men were subsequently arrested and charged with murder. The prosecution contended that the accused lied about the involvement of the three men.
Eventually the accused was arrested. He admitted killing Mr Mansoor but, to the police, he made no further statements as to why he had done so.
On examination at autopsy, Mr Mansoor was found to have over 40 separate knife wound injuries. They were predominately located around his neck and head area. There was a significant stab wound to his stomach. The prosecution relied upon the number and the location of the stab wounds to contend that the accused, having inflicted the wounds, must have had the intention to kill or at least cause grievous bodily harm to Mr Mansoor. Further the prosecution alleged that at the time of the infliction of the wounds the accused must have been standing alongside or behind Mr Mansoor. The prosecution sought to establish that proposition from the findings of the forensic pathologist considered in conjunction with the blood pattern analysis.
The prosecution could not, and did not attempt to, prove a motive for the killing. The prosecution accepted that on the evidence of comments made by the accused to Sim Sim, and led by the prosecution, the issues of provocation and self-defence were raised. However, the prosecution contended that because of the lies told by the accused when spoken to by the police I should reject, even as a reasonable possibility, that the accused was provoked or genuinely acted in self-defence.
Brief outline of the defence case
The accused gave evidence and I deal with his evidence in detail later in these reasons. The defence case was that the accused and Mr Mansoor were involved in an argument during which Mr Mansoor uttered provocative comments about the accused’s wife. This led to a physical altercation during which the accused lost his self-control and repeatedly stabbed Mr Mansoor. The accused accepted that he stabbed Mr Mansoor and before me pleaded guilty to manslaughter. The defence was that the accused was provoked into killing Mr Mansoor.
The charge of murder
A person commits murder if he/she causes the death of another person deliberately and unlawfully whilst at the same time intending to cause death or grievous bodily harm.
There are a number of elements to the charge of murder, each of which must be proved by the prosecution beyond reasonable doubt for the accused to be found guilty of the charge.
The prosecution must prove that:
1The act or acts of the accused caused the death of the deceased;
2The act or acts of the accused were voluntary, that is to say they were the result of the exercise of the will;
3The act or acts of the accused which caused the death were done with the intention to kill or cause grievous bodily harm to the deceased. Grievous bodily harm refers to “really serious” harm. The intention must exist at the time of the act or acts which caused the death of the deceased; and
4There was no lawful defence or excuse that applied to the killing, such as self-defence.
Even if the above four elements are proved beyond reasonable doubt, where evidence at trial raises the issue of provocation, the prosecution must negate beyond reasonable doubt that the killing was provoked by the deceased’s conduct. If there remains a reasonable possibility that at the time of the killing the accused was acting under provocation in its legal sense, the accused cannot be guilty of murder but can be found guilty of the crime of manslaughter.
There was no dispute that the accused killed Mr Mansoor nor that he must have had at least an intention to inflict grievous bodily harm at the time of the stabbing. There was no suggestion that his acts were anything other than voluntary except for the accused’s evidence as to an “accident” and tripping. The accused, through his counsel Mr Boucaut SC, did not seek to rely on self-defence or excessive self-defence. His plea to manslaughter was, self-evidently, inconsistent with his suggestion that the stabbing was an “accident” or in self-defence. However, there was evidence that raised the issues and I will deal with these issues later in these reasons. The accused relied on provocation as reducing his guilt from murder to manslaughter.
The prosecution, correctly in my view, conceded that, had this been a jury trial, there was sufficient evidence requiring provocation to be left for the jury’s consideration. That is, all the elements of provocation should be considered by the trier of fact. I approach the case on that basis. It is necessary for me, as the trier of fact, to consider whether I am prepared to accept, at least as a reasonable possibility, that Mr Mansoor engaged in conduct that at law amounted to provocative conduct.
Other legal directions
The prosecution called and relied on a number of expert witnesses. I am the sole judge of the facts and I am entitled to assess, and accept or reject, any such opinion evidence as I see fit.
It is for me to give such weight to the opinions of those expert witnesses as I think should be given having regard to the qualifications of the witness, the partiality or otherwise of the witness and the extent, if any, to which the witness' opinion accords with such other facts as I find proved to my satisfaction.
In this matter, all the expert witnesses were appropriately qualified and gave their evidence in a professional manner. There was no suggestion of any bias. I accept their opinions.
The accused admitted to drinking alcohol on the afternoon and evening of the killing. He described himself as drunk. I have taken into account the videos recorded on the night of the killing. I accept that he is affected, to some extent, by his consumption of alcohol. No blood sample was taken to record his blood alcohol level.
Consumption of alcohol can have a significant effect on both perception at the time of an event and subsequent recollection of those events. It can also affect memory or capacity for recall as well as affect a person’s state of mind and how they may perceive the words or actions of someone else. I have had regard to the consumption of alcohol when considering the version of events the accused gave at the scene and also subsequently, I have had regard to it when assessing the reliability of his evidence.
I have also had regard to the consumption of alcohol when assessing the subjective limb of provocation.
The Prosecution Case
Background
At the time Mr Mansoor was killed he was about to move house and live with Sim Sim and the accused. The accused and Sim Sim had previously lived at the Heywood Street address whilst Mr Mansoor had been living with his girlfriend. It is clear that Sim Sim and the accused, as well as Mr Mansoor, shifted residence due to ongoing problems with a number of Sri Lankan men who lived at the Heywood Street address. Evidence was led relating to the relationships between the various witnesses and the previous incidents which had caused tension between the accused and the other witnesses. While these relationships are relevant to some of the issues involved in this matter it is not necessary to make specific findings. There was much common ground.
The accused met a number of the witnesses through his employment at a tomato factory in Virginia, South Australia. It was here the accused met Mr Mansoor and Sim Sim. Kumar indicated that he also worked at the factory but was eventually let go following an incident where he put petrol instead of diesel into a truck. When the accused first started working at the tomato factory he was living at the Heywood Street address with Kumar, Selvan, Teacher and Theepan. Kumar was responsible for collecting money to pay for the rent and bills associated with the property, and he charged people $150 per week to live there.
Around two weeks before Mr Mansoor was killed, Kumar asked the accused to move out of the Heywood Street address. Kumar explained that he did so following an incident where he came home from work to find the accused drunk and swearing at him saying “you cunt, are you a good manager of the house”. Kumar indicated that he told the accused he had two weeks to get out of the house. Selvan gave evidence that the accused was asked to leave the house after the housemates had been informed about an incident that occurred in Murray Bridge. The accused gave evidence that one day Kumar told him not to come home after work and to look for another house. It was the accused’s belief that he was asked to leave the house due to the other men, who were Tamil Tigers, finding out about his affiliation with EPDP. Evidence was given that during the Sri Lankan Civil War EPDP was a political party in direct opposition to the Tamil Tigers (LTTE).
By the time the accused moved out, it was Kumar’s evidence that the accused owed him $380 for rent, water and electricity bills and food expenditure.
Kumar’s evidence was supported by the evidence of the other Sri Lankan witnesses who indicated that when the accused left the Heywood Street address he owed Kumar money for unpaid rent, bills and food. Selvan and Teacher gave evidence that the electricity at the Heywood Street address was cut off for two days as they did not have the money to pay the bill. On the Monday before the incident, Sim Sim said he took the accused to the Heywood Street address to pick up his belongings. Sim Sim explained that the accused told him that he had an argument with Kumar about the amount of money owing. Kumar also gave evidence that the accused came over to the Heywood Street address to collect his clothes two or three days before the incident. Kumar stated that he had a conversation with the accused where he told him he needed to pay the $380 owing, but that the accused had told him he only had $200. This was consistent with Selvan’s evidence. Kumar stated that the accused told him he would pay the money when he was paid on Thursday, but that Kumar would have to come over and collect the money from him as the accused did not have a car. Further evidence was led to suggest that after the visit, a number of phone conversations were made between the accused and Kumar relating to the debt.
Sim Sim had also spent some time living at the Heywood Street address prior to moving into the Broadacres Drive address. Sim Sim recalled attending a birthday party at the Heywood Street address. He had accidentally reversed his car into the letterbox at the property and damaged it. A week later, Sim Sim stated that he received a bill from Kumar for $1,500 relating to the damage to the letterbox and the cost of food, board and bills for the time he had stayed there. Sim Sim said that this was more than what was owed but that Kumar was threatening to cause him issues with his visa by going to the police about the letterbox incident. Sim Sim said he paid Kumar $750 but told Kumar he would not pay the rest. Sim Sim alleged that one or two days before the killing of Mr Mansoor, Kumar threatened Sim Sim’s life unless he paid the rest of the money. Sim Sim said Mr Mansoor had also told him that Kumar threatened both Sim Sim’s and the accused’s lives over the money they both owed.
The Sri Lankan witnesses also gave evidence relating to the two opposing groups in the Sri Lankan Civil War: the EPDP backed by the Sinhalese government and the insurgent group known as the Tamil Tigers. Sim Sim said that a person who associated with the EPDP would be regarded by the majority of Tamil Tigers as a traitor. He said that at the beginning of the Civil War the Tamil Muslims were part of the Tamil Tigers, however they drew away from them later. He also stated that some Tamils were distrustful of Muslims.
I do not consider it is necessary to resolve the inconsistencies in the evidence about what occurred between the accused, Sim Sim and Kumar. I am satisfied upon the evidence that the debt allegedly owed by the accused to Kumar was a significant source of tension between them around the time of Mr Mansoor’s death. I accept that the accused’s affiliation with the EPDP was also a source of tension. Against that background I turn to the events of 2 March 2017.
The attendance at Penfield Gardens on 2 March 2017
Sim Sim, who was living at the Broadacres Drive address at the relevant time, was the first witness to give evidence about that evening.
Sim Sim stated that sometime between 10pm or 11pm on the Thursday night he heard cars arriving at the property and then knocking on the front door of the house. Just as he was about to open the door, Sim Sim heard a voice from outside say the words, “you don’t need to come, please let Kabil come”. He decided to open the door and saw nine people outside the property carrying what he believed to be batons or sticks. Of these nine people, Sim Sim recognized Kumar, Selvan, Teacher and Kilmer from their voices. Sim Sim heard one man yell out, “he is an EPDP man, let him come out. Send him away”. Sim Sim also recalled hearing comments from these men about the accused owing Kumar money. Sim Sim said that he was concerned about the accused’s safety so he went to the accused’s bedroom to wake him but that the accused was “too drunk” and would not respond. When Sim Sim returned to the front door, he observed the men outside smash the pot plants. Sim Sim estimated that the men were outside the property for 45 minutes before they drove away.

Sim Sim gave inconsistent answers about what was said by the Sri Lankan men when they were outside the house. I do not mean that he intended to mislead me. I consider that the problem lay with the interpretation of English into Tamil (and vice versa) as I discussed earlier in these reasons.
Under cross-examination Sim Sim was asked the direct question whether any of the men threatened to kill the accused that night. He did not give a direct answer. He then said it was over two years ago and that he couldn’t remember. He said the tone of the conversation was that they wanted to kill the accused. He then said that they used the word stab in Tamil but didn’t use the word kill. After further cross-examination Sim Sim was again asked the direct question whether the men that night said they wanted to kill the accused. He replied “Yes”.
After the group of men left, Sim Sim went outside to check on the damage before he went to bed. The following morning, Sim Sim said that he told the accused about the incident with the men the previous evening. He accepted that he told the accused the men had come and that they were “wanting to kill him”.
Each of the five Sri Lankan witnesses living at the Heywood Street address gave evidence that they attended the Broadacres Drive address on the Thursday evening. They indicated that they travelled in two cars to the property. Of these witnesses, Kilmer and Theepan both recalled having some concern about what was going to occur at the address; Theepan believed that Teacher and Selvan were drunk while Kilmer indicated he was worried there might be trouble. Teacher gave evidence that he and Selvan had been drinking, but denied that they were drunk.
When they arrived at the property, Kumar and Selvan gave evidence that the lights were off and no one was home. They knocked on the door and called out to the accused, but no one responded. Both men estimated the group stayed for less than 20 minutes before they realised no one was home and returned to the Heywood Street address. They did not accept that they threatened the accused or indeed that they attended the premises for that purpose.
Theepan and Teacher gave evidence that when they arrived at the Broadacres Drive address, a light was on inside the property but at some stage this light was turned off. Teacher said that he thought the light had been turned off to indicate no one was home. Theepan recalled that the light was only turned off once Selvan and Teacher began yelling out for the accused. While Kilmer did not recall any lights being on in the property, he gave evidence that he heard a noise coming from inside.
Kilmer and Theepan gave evidence that upon their arrival, the other men began making a lot of noise outside the property. They observed the men swearing and yelling out for the accused, while knocking on the front door and windows of the property. Theepan indicated that at one point, Selvan was too drunk and he had to pull him away from the front door.
Teacher denied that any of the men were making a loud noise or that they were angry while they attended the address.
Sim Sim’s evidence, in some respects, received support from Mr Gibbs. Mr Gibbs lived in the neighbouring property.
Mr Gibbs recalled that he was watching television with his wife when sometime between 9pm and 10pm he heard strange noises coming from outside. He said that it was generally very quiet next door so he decided to go outside and investigate. As he approached his letterbox, he observed two parked cars in front of the driveway at the Broadacres Drive address. He noticed the front verandah light was on as well as the lounge room light. As he walked closer towards the property, he observed a group of at least eight people getting into the two cars. Mr Gibbs stated that he hid behind a tree while the two cars drove away. He then walked a little bit further and observed a person next door under the verandah light picking up cans and bottles and throwing them into a wheelie bin.
Mr Gibbs was an honest and reliable witness. Self-evidently he was not involved in the dispute between the two groups. There must have been sufficient noise for him to have decided to investigate. His evidence is inconsistent with the suggestion that not much happened at Sim Sim’s house. I accept his evidence.
I have found it difficult to reconcile the conflicting accounts given by the different Sri Lankan witness as to the events that unfolded at the Broadacres Drive address. The inconsistencies as to what the five Sri Lankan men saw and did once they arrived at the Broadacres Drive address has led me to doubt the reliability of their evidence. Sim Sim was inconsistent in his evidence although, as mentioned, that could, partly at least, be explained by difficulties with the interpretation of his answers.
I am satisfied that each of the five Sri Lankan witnesses who were residing at the Heywood Street address attended at the Broadacres Drive address on the Thursday evening. I am further satisfied on the evidence that when these men arrived, both Sim Sim and the accused were at home inside the property. Although I cannot rely entirely on Sim Sim’s evidence I generally prefer his evidence to that of the five other witnesses.
I find that the attendance of these witnesses primarily related to a debt alleged to have been owed to Kumar by the accused. I note that no reasonable explanation was given as to why it required five men to go and collect the money. Tensions over their respective political alliances were also part of the reason for the attendance. While I cannot be satisfied beyond reasonable doubt that all of these men were carrying weapons, the observations as to their behavior and the amount of noise they were making from the other witnesses enables me to find that they were behaving in an aggressive and threatening manner. It may be that one or two of them were carrying sticks.
After the incident involving Kumar and others at the Broadacres Drive address had finished Sim Sim said that Mr Mansoor called him multiple times. He thought it was around 10pm to 11pm that night. He said that Mr Mansoor told him that the men had gone to see him after the incident at the Broadacres Drive address and asked him for a key to the property. Mr Mansoor refused to give it to them. Sim Sim said that Mr Mansoor was “fed up” with the problem and that he said he would “teach them a bloody lesson”.
Kilmer gave evidence that after the men returned from the Broadacres Drive address to the Heywood Street address there was a phone call made after which Kumar and Selvan picked Mr Mansoor up and brought him to the Heywood Street address. Mr Mansoor spent some time there drinking and eating. Kilmer went to bed at around 2am. This was the last time he saw Mr Mansoor. He did not suggest that Mr Mansoor was angry with the men when he was at that address.
Kumar gave evidence that Mr Mansoor came to the Heywood Street address Friday morning and that he organised to get some money from Cash Converters to help pay the debt the accused owed.
I am unable, on Sim Sim’s evidence, to make a specific finding about what was said by the men who attended the Broadacres Drive address that night. However, whatever was said was threatening and directed towards the accused.
It is not necessary for me to make specific findings about this event. Even if there was no direct threat to kill the accused that night I accept that, given the history between the two groups of men, Sim Sim interpreted their visit as part of the ongoing threat. When the accused was told by Sim Sim the following morning about what had occurred the previous night, I accept that it included the suggestion that they wanted to at least inflict serious injury on the accused. I accept that the conveying of this information by Sim Sim to the accused induced some degree of fear in him.
This incident was not reported to the police.
Events of 3 March 2017 leading up to the killing
During the day when Mr Mansoor was killed, there were telephone conversations involving Mr Mansoor, Kumar, Selvan, Sim Sim and also the accused. There is conflict in the evidence about the nature and content of the telephone calls. The telephone calls fall into two categories; first, those occurring during working hours following the attendance of Kumar and others at the Broadacres Drive address the previous evening and secondly, those occurring close in time to the death of Mr Mansoor.
Phone calls during the day of 3 March 2017
Kumar said at around 10am he called the accused in the presence of Mr Mansoor and Selvan to discuss the debt. Kumar said that the other men were supporting him and saying that the accused needed to pay the money so Kumar could pay the bills. Although the evidence was not clear it appears that the accused was to pay $200 now and the rest later. Kumar said that the accused sounded angry.
Later that day Kumar said that he heard Selvan talking to Mr Mansoor on the telephone. He thought that Mr Mansoor invited Selvan to his house to “eat food”.
The accused stated in his evidence that he received numerous threatening phone calls from Kumar whilst at work on Friday resulting in him giving the phone to his boss to talk to the people on the other end of the phone. The accused’s evidence regarding these calls is inconsistent with the telephone records which show that whilst Kumar made one call to the accused’s phone at 11.15am, it was the accused who made two further phone calls (one unanswered) to Kumar’s phone within half an hour after Kumar’s call. Shortly after, there were then three unanswered calls from Selvan to the accused.
I accept that all witnesses including the accused were giving evidence of telephone calls made or received some two years before. I accept that there was some contact and the question of money was discussed. The accused’s evidence was inconsistent with the telephone records. In the end, little turns on these calls.
Phone calls on the evening of 3 March 2017
Numerous phone calls occurred between Mr Mansoor and Selvan’s phones from 6.22pm to 7.31pm on the Friday evening. There were 16 in total; 15 initiated from Mr Mansoor’s phone, six unanswered. The calls ranged in length from a few seconds to several minutes.
Selvan gave evidence regarding these conversations:
QSo overall, was there one call made or more than one call made.
AMore than three, four times.
Mr Mansoor and the accused both participated in some of these calls.
QCan you describe his mood from the conversation you had.
AHe was very angry. Mohammed left the house a week ago but he moved in on the day and Mohammed asked me to go to the house. But Kabil was telling 'No-one should come to my house'.
…
QYou said that you disconnected the conversation. Was there any more conversation before you disconnected.
AAfter I disconnected the phone, Mohammed called me again.
QHow long after you disconnected.
AMaybe 10 minutes.
QDid you answer the phone.
AYes, I did.
QWhen you were talking with Mohammed, were you able to hear Kabil.
AYes, Kabil was sitting next to Mohammed and he was talking too.
QWhen you say 'He was talking', could you hear him.
AYeah.
QWhat was he saying.
AThe last thing I heard from him 'No-one should come to my house', so after that I didn't answer the phone. 'If anyone comes, it will be a problem'.
According to Selvan, the conversations were initially between himself and Mr Mansoor with Mr Mansoor inviting him over to “cook and eat and drink beer”. At some point the accused took the phone from Mr Mansoor and started talking to him. Selvan said that the accused was angry, sounded drunk and was saying he wouldn’t pay the money owed to Kumar. Selvan disconnected the phone after the accused made disrespectful comments about Selvan’s wife.
The accused, when giving evidence, said that during these conversations Mr Mansoor was fighting with Selvan and Kumar. The accused said the men were calling Mr Mansoor insulting names and that after Mr Mansoor got off the phone he told the accused “they coming to fight. Prepare the knives”. The accused also said that these phone calls occurred before he and Mr Mansoor went to the BWS. This is inconsistent with the accused’s comments during his interview with police taken the morning after the incident. In the interview, the accused said that when he returned home after finishing work at 2pm, he and Mr Mansoor were cooking and eating, they then went to the shops and it was upon returning to the house that the phone calls occurred.[2]
[2] Exhibit P27G.
I reject the accused’s evidence in relation to these calls. I deal with the accused’s credibility later in these reasons. I accept Selvan’s evidence.
Before the final call to Selvan’s phone at 7.10pm that lasted five seconds, Mr Mansoor called Sim Sim at 7.03pm. Sim Sim gave evidence that he spoke to both Mr Mansoor and the accused during that phone call and they appeared friendly with one another. He stated that Mr Mansoor said “They are coming tonight so what am I going to do?” Sim Sim advised him not to open the door and to keep quiet but Mr Mansoor said “I will challenge them”. There was no suggestion from Sim Sim that Mr Mansoor had “arranged”, or intended to “arrange”, knives in preparation for a confrontation.
There is some consistency in the evidence about these telephone calls. There is some support from Sim Sim that the accused and Mr Mansoor believed that the other men may come around that night. Sim Sim is a friend of the accused. However, he gave his evidence reasonably well and without apparent exaggeration. I accept his evidence about the conversations he had with the accused and Mr Mansoor on that evening. It is consistent with the accused’s heightened sense of fear that the “men” from the Heywood Street address may be coming later that evening. I accept his evidence that the accused and Mr Mansoor appeared to be friendly towards each other. I also note that Mr Mansoor expressed the intention to challenge the men if they came around but there was no mention of violence.
There are four unanswered calls from Mr Mansoor’s phone to Selvan’s phone between 7.22pm and 7.31pm. The only evidence given about those phone calls came from the accused and he denied using Mr Mansoor’s phone between the time Mr Mansoor died and when he calls 000. The accused said that he saw Mr Mansoor attempt to make another call during this time. The prosecution case, which I accept on this point, is that those calls were attempted by Mr Mansoor just before he died. This narrows the time when Mr Mansoor was killed to a matter of minutes between 7.31pm and 7.34pm.
At 7.34pm the accused called 000 from Mr Mansoor’s phone as supported by the recording[3] and corresponding transcript of that conversation.[4] There is a second conversation between the accused and 000 at 7.45pm where the operator called Mr Mansoor’s number back after the accused disconnected the previous call. The version of events given by the accused during both phone calls will be addressed later in my reasons as to his credibility. The prosecution submitted that the fabrication of the scene by the accused, which I deal with later, happened between the time of the first 000 call to when Mr Gibbs and Mr Antonas found the accused by the fence line.
[3] Exhibit P27D.
[4] Exhibit P31.
There is no evidence that Kumar and his friends actually intended to go to the Broadacres Drive address that night. Indeed, the evidence would suggest that they in fact had no such intention. However, I do accept that the accused believed they may be attending and he was therefore in a state of heightened anxiety. Sim Sim’s evidence as to the friendly behaviour between the accused and Mr Mansoor shortly prior to the stabbing is in stark contrast to the accused’s claim (dealt with later in these reasons) that Mr Mansoor had attempted to recruit the accused into IS and the accused was threatening to go to the police.
Events after the killing
000 calls
As I have already mentioned, the accused made a call to 000 at 7.34pm just after Mr Mansoor had died. The transcript of that phone call was tendered[5] as well as the recording.[6] I have listened to the original tape. The accused is very hard to understand. He is upset and has very limited English.
[5] Exhibit P31.
[6] Exhibit P27D.
Clearly the police operator had difficulty understanding the accused. However, the accused was able to say that his friend was dead. He was also able to state that he was “running in the jungle”; that was a reference to the large paddock to the south of the house. He could communicate that he wanted the assistance of the police. He also stated that “people are coming” and that “I am no safety”. The accused was unable to tell the operator his address.
The call is terminated by the accused after he says “Car coming. Car…people…people…coming. I am running, ok (inaudible) back”.
The police traced the mobile phone number and rang the number back at 7.45pm. The accused answered the call. The transcript of the call was tendered[7] along with the recording.[8] Again, the accused is difficult to understand. On this occasion, the accused is able to give the operator his name. He again tells the operator he is “in the jungle” and that people are “coming”. At one stage he says “maybe two... two hundred dollars… I kill him my friend”. There is also a reference to “my friend now kill people living here… my friend going cheating… now coming”.
[7] Exhibit P32.
[8] Exhibit P27E.
The accused again disconnects the call by saying “people coming here… here…”
While parts of the conversation can be heard, much is inaudible. It is very difficult, if not impossible, to put the comments in context. The accused’s difficulties with the English language are manifest in the recording. It was suggested by Mr Boucaut SC that the accused makes an admission of killing Mr Mansoor. I do not agree, particularly given the accused’s difficulty with English.
As already discussed a literal interpretation of the answers given may be misleading. “I kill”, for example, could mean in this case either I did the killing or I am about to be killed. Given the accused’s difficulties with the English language I cannot find that he admitted to killing Mr Mansoor. In any event the surrounding circumstances such as his manipulation of the crime scene and his blaming of others when talking to the neighbours makes it extremely unlikely that he was confessing to killing Mr Mansoor when he spoke to the 000 operator.
Conversation with neighbours
Mr Antonas lived at 76 Broadacres Drive. His house is close to the Broadacres Drive address but on the other side of the road. On 3 March 2017 he was sitting on his porch drinking coffee when he heard screaming. He described it as “crazy screaming”, someone “screaming for help”. He looked across the road and saw someone standing nearby and holding onto the fence that separated house blocks 44 and 45. Mr Antonas went over and spoke to this person. It was common ground at trial this was the accused. Mr Antonas noticed that the accused had blood on his chest. Mr Antonas asked the accused what was wrong. The accused said, “it’s my friend, get killed, is dead”. Around this time Mr Gibbs, who lived at 44 Broadacres Drive approached. Mr Antonas agreed with Mr Gibbs that he, Mr Antonas, would contact the police and that Mr Gibbs would go to the house with the accused. Mr Antonas said that the accused did not stop crying and screaming.
When giving evidence, Mr Gibbs said that he had heard noise outside and went to investigate. He saw Mr Antonas talking to someone he did not recognise (the accused). The accused was “frightened and freaked out and not making sense”. The accused kept saying “they killed my mate, they killed my mate. Can you get the police, they killed my mate.” He left the accused with Mr Antonas and went to investigate. He entered the house through the back door and noticed that the stove top was on and that there was a “full meal” on the table “not touched”. It was extremely hot in the room so he turned the stove top off. He then walked through the house and saw the body of Mr Mansoor lying in the hallway. He initially looked to see if Mr Mansoor was still breathing but realised it was “so horrific and so much blood there that it was impossible for anyone to be able to breathe by looking at the scene that [he] was looking at. It was one of the worst anyone could see.”

He returned to where the accused was with Mr Antonas. Mr Gibbs asked the accused “Did you kill him?” The accused replied “no, no, the others killed him”. Mr Gibbs asked who were the others but he was not able to understand the accused’s answer. He described the emotional state of the accused at that time as “still just as bad”.
There was no challenge to the evidence of Mr Antonas or Mr Gibbs. They were both honest and reliable witnesses and I accept their evidence.
Of importance is that the accused was blaming “others” for the killing before the police arrived. This was shortly after the 000 calls.
Police attendance at the scene and initial observations
On the evening of Friday 3 March 2017 Constable Corben and Brevet Sergeant Drury were on uniform patrol. They were tasked to attend the Broadacres Drive address where they arrived at 8.31pm; they were the first officers on the scene. Both officers noted a car in front of the house (which other evidence established belonged to Mr Mansoor). Corben said that the hallway light was on but the verandah light was not.
Both officers observed the accused walking from the left side of the house in their direction; he was wearing a backpack. They saw blood on the accused’s pants and feet, noting that the blood didn’t appear to be fresh as it had soaked into the accused’s pants. Drury said that he heard the accused mumble something like “people came and killed my friend”, at one stage pointing in the direction of the front door. This was consistent with the accused’s later statements to the police but inconsistent with his suggestion, in evidence, that before the interpreter was arranged, he had tried to tell the police that he had killed Mr Mansoor. Corben described the accused as appearing to be in shock. Neither officer recalled smelling alcohol on the accused or seeing any injuries on his person. I reject any suggestion that the accused mentioned IS or anything like that when they attended the scene.
Both officers gave evidence of seeing Mr Mansoor’s body lying in the hallway in a pool of blood. Drury entered the house through the rear door, noting a bowl of food on the dining table and that the television was on. Drury said there was no blood anywhere else in the house apart from the hallway. Neither officer checked to see if Mr Mansoor was alive stating that in their opinion it was obvious that he was dead.
Drury took photographs of the rear verandah area of the house.[9] These photos show the area as it was when the officers arrived. There was an empty bowl on the back table with some bottles and glasses as well as a pair of shoes. Both officers also gave evidence as to the existence of broken glass at the front of the house. The front window of the house was broken.
[9] Exhibit P29.
The officers had considerable difficulty in understanding what had occurred and what the accused was saying to them. This was largely due to the accused’s very limited English.
The officers were good witnesses and I accept their evidence. They handled what was a confusing and distressing scene in a very professional manner.
Statements of the accused
The accused made a number of out of court statements. I set them out chronologically. I contrast these statements with the evidence the accused gave in court later in these reasons.
Police interview on the scene at 8.35pm
Constable Corben and Detective Brevet Sergeant Sherratt spoke with the accused at the scene. The conversation was recorded; the recording[10] was tendered as was a transcript of the recording.[11] As part of the conversation was conducted through a Tamil interpreter I have to rely on the transcript for the accuracy of those parts. The initial part of the conversation was without an interpreter so again there was some difficulty in understanding everything the accused was saying.
[10] Exhibit P27F.
[11] Exhibit P34.
As Detective Brevet Sergeant Sherratt said at the time to another officer, the situation was, when he arrived at the scene, complex. He handled the scene in a professional manner.
Detective Brevet Sergeant Sherratt obtained a Sri Lankan interpreter but this interpreter spoke Sinhalese not Tamil. Detective Brevet Sergeant Sherratt then obtained the services of a Tamil interpreter (by telephone).
The transcript of the interview was admitted by consent. It does more than simply record the answers given in English by the interpreter of what the accused told her in Tamil; the transcript also records a later interpretation, not in real time, of what the accused said in Tamil. To put that another way, a Tamil speaker listening to the video recording at a later time, has also “interpreted” what the accused said. Therefore, in the transcript I have two English interpretations of what the accused said in Tamil in response to the police questions; one being the interpretation given on the night and the other done later. Generally, the two interpretations are consistent but there are some variations.
I will, where possible, rely on the video recording. However, where the accused answered in Tamil I must rely on the transcript.
It is very difficult to understand what the accused was saying in English before the interpreter assisted. It is unclear, when he describes people arriving at the house, whether he is talking about that night or the incident that occurred the night before. At one stage, he says “Officer I do nothing. Some people come in kill. My people my country people”.[12] He admits to being drunk. He refers on a number of occasions to the fact that he is a “political man”.
[12] Exhibit P34, p 7.
Once the interpreter is available he clearly blames three other Sri Lankan men. This was a false story. The accused told the police that they killed Mr Mansoor for two hundred dollars.
Detective Brevet Sergeant Sherratt, even with the assistance of the interpreter, had difficulty in obtaining a clear statement from the accused. Again, that is not a criticism of either Detective Brevet Sergeant Sherratt or the accused. However eventually the accused stated:[13]
The accused (in Tamil but interpreted later)
Mohammed uses marijuana and drinks. I drink wine, whiskey and so on. When they came in three cars I said “they are coming with knife. They are going to stab. Don’t open the door” but he opened the door. When he opened the door, they straightaway stabbed him at the doorway. They slashed him and stabbed him on his head. I ran away. I ran away through the back door.
Tamil interpreter (on the night)
The person Mohammed takes drugs, marijuana and I drink only wine and whiskey and stuff. When they came with a knife I told my friend “don’t open the door because they are with the knife” but he immediately opened the door, they stabbed him. They stabbed him on his head and very badly they stabbed him.
[13] Exhibit P34, p 21.
There are slight variations between the interpretation on the night and the later interpretation. However, the narrative is clear. The accused is lying, and deliberately lying to the police. He is blaming others for killing Mr Mansoor. When giving evidence the accused admitted he lied to the police.
The accused, while his answer is being interpreted, says in English:
Door open. Kill. Inside, kill brother. Kill.
He then demonstrated what the men allegedly did to Mr Mansoor. This can be seen on the video recording. He demonstrates twice. First he shows a stabbing motion to the back of the neck and a slitting of the throat. His second demonstration includes a stabbing motion to the stomach. These movements are very important for reasons I discuss later.
The accused repeatedly offered to show the police where Kumar and the other men lived, eventually taking them to the Heywood Street address.
During the course of the interview one of the officers can be heard to say that the accused appeared to be affected by alcohol. The accused said during the interview that he had been drinking. The accused was not breath tested nor was a sample of blood taken to determine his alcohol level; he was not a suspect at the time.
Statement of the accused at 1.06am on Saturday 4 March 2017
The accused was taken to the Elizabeth Police Station where he was questioned by the police who at that time believed the accused was a witness, not a suspect. He gave a statement to the police with the aid of an interpreter and signed the statement.[14]
[14] Exhibit P35.
In summary, the accused said that at about 8pm the previous night three cars pulled up in the driveway of the Broadacres Drive address. He was looking through the window and saw lots of people getting out of the cars with knives. He recognised three of the men. He was scared and told Mr Mansoor not to open the door, but Mr Mansoor did anyway. The accused ran to the back of the house but not before first seeing Kumar hit Mr Mansoor on the head with a knife. He heard them shouting “kill, kill, kill, kill”.
After 10 minutes, he heard the cars leaving and returned to the house where he saw Mr Mansoor covered in blood and gasping for air. He didn’t see where Mr Mansoor was cut but said he held him as he died. The accused ran to his neighbours for help, asking that they call the police.
Again, this statement to the police was untrue. The accused in evidence admitted the statement was untrue.
The police arrested the three men and they all spent approximately one month in custody.
Police interview at the Elizabeth Police Station at 10.40am on Saturday 4 March 2017
This interview was conducted the morning after the incident with an interpreter present. The recording became Exhibit P27G. The interview was conducted by Detective Brevet Sergeant Huppatz. The accused at that time was still not a suspect. The interview was lengthy. Detective Brevet Sergeant Huppatz asked many questions designed to obtain details of the background and relationships between the Sri Lankan men involved.
The transcript[15] followed the same format as the earlier recorded interview. I have two English interpretations of what the accused said in Tamil in response to the police questions; one being the interpretation given at the time of the interview and the other done later.
[15] Exhibit P36.
The accused said that upon returning home from work around 2pm he and Mr Mansoor were drinking and eating. He said that Mr Mansoor had an argument over the phone and they then went out twice, once for cigarettes and then again for more alcohol. The accused said there was a further argument over the phone between Mr Mansoor and the men from the Heywood Street address. After hanging up, Mr Mansoor grabbed a knife and walked towards the car wanting to go confront the other men. The accused said he talked Mr Mansoor out of going and then went out the back of the house to smoke.
When discussing the incident on this occasion, the accused gave a different version to that detailed in his earlier written statement. When interviewed he denied seeing the men come through the door nor did he witness the actual stabbing. He said he heard the cars in the driveway. He told Mr Mansoor not to open the door but Mr Mansoor said he would go and talk to them. The accused said that he heard the men come through the door and yell “slash him, slash him”. He said the voices were those of Kumar, Teacher and Selvan. Contrary to his earlier statement he said he did not see the men until after they had killed Mr Mansoor and were getting back into their cars. He had run outside and saw them from where he was hidden in the bushes. He said they were wearing blue gloves like the ones in the interview room. When he came back to the house after the men had left he said he saw Mr Mansoor on his back struggling to breathe and tried to hold him.
The accused said that he called the police but he disconnected the calls as he was scared the men were coming back. He then went to the neighbours to get help.
When questioned about the differences between his accounts the accused said he was intoxicated when he gave his written statement. He said the written statement was incorrect.
The accused also said that when he got home from work he had taken the grass cutter out and put it on the front verandah as he was planning on cutting the grass. This is the grass cutter that can be seen in photograph six of Exhibit P1.
The accused lied to the police during this interview about what had occurred on 3 March 2017. When giving evidence he admitted lying to the police. He said nothing during this interview about Mr Mansoor trying to recruit him to IS.
Conversations between the accused and Sim Sim
Sim Sim gave evidence of a number of conversations he had with the accused in the weeks following the incident. On the way home from the police station on Saturday 4 March 2017, Sim Sim said the accused told him that Kumar, Selvan and Teacher had killed Mr Mansoor and that he had run away. The accused told him that he had returned to the house when Mr Mansoor was half dead and had tried to revive him. This was untrue but consistent with the lies he had told the police.
Sim Sim said that, on a few occasions, the accused had disclosed to him that he had killed Mr Mansoor but Sim Sim had thought the accused was joking. The exact timing of these conversations was not clear. Sim Sim’s evidence was:
QThat during that conversation Kabil had told you that he had killed Mohammed but you thought he was joking.
AYes.
QDuring that conversation did he give you any explanation as to why he had killed Mohammed.
ANo.
QYou said there were other times when you were not at work when Kabil told you that he had killed Mohammed, is that right.
AYep.
QDuring the other conversations did he give you an explanation or a reason why he had killed Mohammed.
AYep.
QCan you tell me what explanation Kabil gave to you.
ABriefly I’m telling him and he was telling I found out that he is betraying us, so that why he killed him.
QAre they the words that Kabil used to you.
AHe is cheating us.
QDid Kabil tell you what he meant by “he is cheating us”.
ABriefly telling that I’m telling you that what he meant to say: he was telling that for the snake is showing the head and for the fish he is showing the tail.
HIS HONOUR
QI presume that means, Mr Boucaut, he is being deceptive.
XXN
QDid Kabil explain in what way Mohammed was cheating him.
AWhatever that information he gathered from us and he is going to the other party and manipulating as well and whatever information gathered from them and he is misleading us, so because he didn’t want to solve the problem smoothly.
This is inconsistent with his evidence that Mr Mansoor was going to confront Kumar and that he told the accused to put out knives. Sim Sim said the accused had told him that Mr Mansoor had slapped the accused and started attacking him with the knife first. It is unclear from Sim Sim’s evidence when this version of events was relayed to him.
The accused said that Mr Mansoor attacked him and he was shocked. Mr Mansoor had the knife but he, the accused, grabbed the blade in both hands and turned the knife and cut Mr Mansoor’s neck. During the fight, he said that Mr Mansoor had used “bad words”. That meant that Mr Mansoor had been insulting the accused by saying that he, the accused, should give his wife to Mr Mansoor, in effect, to see who the better man is. Sim Sim said that in Sri Lankan culture this was “the biggest insult”. It is likely that this conversation was the one recorded by the police when the accused was in prison.
Sim Sim said the accused had told him that the men in prison were innocent and that he wanted to surrender himself.
Sim Sim also gave evidence that on one occasion the accused said he would go to the police and tell them that it was Sim Sim who had killed Mr Mansoor.
Interview with the accused at 8.53pm on 28 March 2017
The accused was arrested for the murder of Mr Mansoor. He received legal advice and I infer that, acting on that advice, he refused to answer any questions.
After he was arrested the police undertook a forensic procedure. Detective Sergeant Ward was the officer overseeing the procedure. The procedure was conducted in the presence of an interpreter and was recorded.[16]
[16] Exhibit P27H.
Detective Sergeant Ward activated the recording equipment and began to explain to the accused that the forensic procedure was to be recorded. While that was being interpreted to the accused, he volunteered in English “Sir I’m murder I am sir. Mohammed murder I am”. What then occurs is a conversation between the accused and the interpreter in Tamil however it appears in the transcript in English:[17]
ATell them that Mohammed…we were both fighting. I was quite intoxicated. He is my best friend. I am the one who stabbed him.
QYou were both fighting?
AWe were both fighting and the knife was nearby so I took the knife and slashed him at various places (inaudible).
[17] Exhibit P39.
The accused proceeded to demonstrate by making a hand gesture of slashing with the knife. As discussed later, this gesture is inconsistent with his evidence that he only “pushed” the knife.
Detective Sergeant Ward, who does not speak Tamil, did not understand this interchange. The interpreter began to interpret into English what the accused had just told her.
The interpreter was quickly interrupted by Detective Sergeant Ward. He anticipated, correctly, that the accused may make further admissions so he cautioned the accused again and reminded him of the earlier legal advice he had received. Detective Sergeant Ward was professional in his dealings with the accused. There was no complaint, nor could there be, about his conduct.
The issue of the admissibility of the recording was raised. The accused did not pursue any objection to the recording and transcript being admitted into evidence.
Interviews on 10 April 2017
The accused was taken from prison to the Elizabeth Police Station for the purposes of having prints of his feet taken. An interpreter was present and all conversations were recorded. During the procedure, the accused said in Tamil to the interpreter (appearing in English in the transcript):[18]
The thing is… why are you taking all this… my print… I accidently had done something to him to protect myself while I was intoxicated. I am accepting it. I told you I had done something while I was intoxicated.
[18] Exhibit P40A.
This was then interpreted to the police officer involved.
There was a second conversation that was recorded as the accused was transported back to prison.[19] During this conversation the accused said that although Kumar, Selvan and Teacher didn’t commit the crime, they were the reason behind why it all happened. He stated that he had to take the knife for his own safety because otherwise Mr Mansoor would have taken it.
Conversation recorded on listening device in prison
[19] Exhibit P27J; Exhibit P41.
Sim Sim visited and spoke to the accused in prison on 17 June 2017. The police recorded that conversation by means of a listening device. The discussion was in Tamil. No objection was taken to the admissibility of this evidence. The recording became Exhibit P27A and the translation of that conversation became Exhibit P28. Self-evidently I have to rely on the transcript.
During the conversation, the accused said that on the night of the incident Mr Mansoor had argued on the telephone with the other Sri Lankan men and then told the accused to get the knives and “put them in order”. From the accused’s later evidence, I can assume that this meant putting or leaving knives in various places in case the Sri Lankan men came over. The accused said they then went to the shops for cigarettes and wine. On the way to the shops, the accused said Mr Mansoor had driven them halfway to the Heywood Street address before the accused told Mr Mansoor to turn around. After buying wine and cigarettes they returned home.

During the course of the discussion with Sim Sim the accused said that he and Mr Mansoor were drunk. He went to the back of the house and was smoking a cigarette when he heard Mr Mansoor on the telephone. He heard him say:[20]
“one person is missing and the other person is here so if you come…(inaudible) and put it in the bush. One’s gone and only one is here.”
…
I heard this conversation and got really angry. I went up to him and asked him…(inaudible) “how would you kill me?”
[20] Exhibit P28, p 2.
The “person missing” was likely a reference to Sim Sim who wasn’t at home at that time.
The accused said he got angry and confronted Mr Mansoor. The accused said:[21]
He slapped me on my face. We were both sitting down at that time and talking. I asked him why he spoke like that. He was quite intoxicated. The knife was like this. He was here and I was here. The knife was next to him. There was a knife next to the (inaudible).
Listen carefully. I also took the knife. The knife struck me here. He was on top of me and I was under him. We held onto each other’s hands and were arguing for a long time. Here… this is because of his grip. We were rolling on the floor and arguing for a long time. We rolled and must’ve gone inside the house. Many times he was on top of me. That’s when the knife came in contact with him and the knife penetrated his throat. He was on top of me and then we rolled and I was on top of him. When I was on top of him, the knife got pushed and that’s when the knife penetrated him. There is nothing wrong on my side. (Inaudible).
I didn’t do anything wrong. I told you previously so that you would go and inform the police.
[21] Exhibit P28, p 2-3.
At another point in the discussion the accused said:[22]
You tell them that it was a mistake. You know, he finally said something inappropriate about my wife. About ripping her clothes off. We were hitting and slapping each other. He was the one who first slapped me and I slapped him back. He suddenly jumped and grabbed it saying “I will kill you”. We were rolling on the floor; all over the place. We must have rolled and somehow went into the room. We went into the room and as I was intoxicated I didn’t know anything… (inaudible) blood (inaudible). I phoned the police and I ran to the neighbours and told them.
[22] Exhibit P28, p 4.
The accused then gave an account of the fight that was similar in part to the account he gave in evidence; there were however some significant differences. For reasons I discuss later, I reject this account of the fight.
There is no mention in his conversation with Sim Sim of Mr Mansoor attempting to recruit him into IS. It is important to note that the version of events mentioned by the accused is one he wanted Sim Sim to tell the police.
The recall of Detective Brevet Sergeant Sherratt
Detective Brevet Sergeant Sherratt was recalled to give further evidence. He attended the Penfield Gardens address on 13 March 2017 for the purpose of doing a “welfare check” on the accused. The accused, for reasons not clearly explained, had been taken to hospital; he had spoken to a psychiatrist so I infer it had something to do with his mental health. Given the nature of the visit by the police, no interpreter was arranged.
Detective Brevet Sergeant Sherratt made notes of his attendance. He said the conversation was difficult due to the accused’s limited English. During the course of the conversation the accused mentioned Muslims and Tamil Tigers. He also mentioned Brisbane and Paris and at the same time gesticulated by imitating holding a firearm and shooting. Detective Brevet Sergeant Sherratt said that the “inference was that there was some shooting at Brisbane and [he] put it in the context of the current climate at that time where there was some terrorism over in Paris and other places”.
The accused, when he gave evidence, said that he told Detective Brevet Sergeant Sherratt that Mr Mansoor had tried to recruit him into IS and to go to Brisbane to work in the airport as a cleaner, and also the Gold Coast. The accused said they would give him a car and send him to France for weapon training.
I do not accept that the accused was trying to tell Detective Brevet Sergeant Sherratt about Mr Mansoor attempting to recruit him to IS. I have no doubt if something like that was said, Detective Brevet Sergeant Sherratt would have obtained the services of an interpreter and had a proper statement taken. His assessment of the accused’s demeanour suggests otherwise. It is also relevant that at this time the accused was still placing the blame on Kumar and others. Also, in subsequent discussions the accused referred to Mr Mansoor as his “friend” and made no mention to anyone else, including Sim Sim, about what Mr Mansoor allegedly said about IS.
I discuss later, further reasons to reject this version of events.
Finally, Mr Boucaut SC submitted that a police apprehension report[23] supported the accused’s version of events. The report related to an incident in which Mr Mansoor was involved in March 2015.
[23] Exhibit D42.
Mr Mansoor was arrested for harassing the Immigration Department. He was, in some way, unhappy with the Government and the Prime Minister and said he was going to kill himself in front of Adelaide Oval. He said he didn’t want to hurt anyone else, just kill himself. Mr Mansoor spoke about Tamil Tigers and terrorists. He was emotional and affected by alcohol. The police detained him under section 57 of the Mental Health Act 2009 (SA) and he was taken to the Lyell McEwan Hospital and assessed. He was not detained further and was released into police custody.
I reject any suggestion that this incident assists in determining whether Mr Mansoor attempted to recruit the accused into IS. On the accused’s own evidence Mr Mansoor was a drug taker and drank alcohol around the time of this incident, factors which suggest he did not harbour fundamentalist ideals. He was regarded by others to be helpful and assisted them as he spoke English reasonably well. There was no suggestion that in March 2017 Mr Mansoor had any concerns at all with the Immigration Department. The police report, Exhibit D42, does not assist in resolving any issues.
Post-mortem examination
Dr Cheryl Charlwood, a forensic pathologist, carried out the post-mortem examination on Mr Mansoor on the evening of 5 March 2017. Her qualifications were not challenged. During her examination Dr Charlwood documented the injuries to Mr Mansoor on a series of charts, later admitted into evidence as Exhibit P13. When giving her evidence Dr Charlwood referred to photographs[24] taken during the examination and a series of anatomical diagrams.[25]
[24] Exhibit P14.
[25] Exhibit P15.
Dr Charlwood concluded that Mr Mansoor died as a result of incised injuries to his neck and abdomen. Dr Charlwood described these incisions as “slash, stab and chop wounds” caused by a knife or some other type of cutting implement. Dr Charlwood recorded over 40 separate injuries to Mr Mansoor’s body, two of which she considered to be potentially fatal.
Neck injury
There was a large gaping wound to the neck. Mr Mansoor’s upper airway and common carotid artery had been severed. This wound stretched 24cm in length and up to 5cm in depth. It extended from just left of the front midline all the way around to just right of the midline at the back of Mr Mansoor’s neck. Dr Charlwood noted further damage to Mr Mansoor’s voice box and spinal column, including severance of the epiglottis and almost complete severance of the pharynx. She indicated that her ability to feel what she described as “palpable fragments” in that area of the neck was indicative of fracturing to the bone. Dr Charlwood attributed at least five separate contacts to this one wound, any one of which would have involved a severe degree of force to cause the bone and cartilage damage. Dr Charlwood explained that when the carotid artery is severed, “arterial spray” could be expected until the blood pressure drops to a certain level.
Dr Charlwood described the injuries to Mr Mansoor’s neck as an overlap of stab, slash and chop wounds, though she accepted that the overall characteristics of the wound were most consistent with “slash” wounds. Slash wounds, she explained, are characteristically longer on the surface than they are deep. Dr Charlwood accepted, however, that once the wound had been opened, she could not exclude the possibility that additional stab wounds were inflicted within the injury.
Dr Charlwood noted the presence of tails to the wound as consistent with the accused having been positioned to the side or behind Mr Mansoor when the wounds were inflicted.
Dr Charlwood explained that the presence of bruising and contusion to the muscles and tissue supported the proposition that the neck injuries were likely inflicted while Mr Mansoor was still alive. She indicated that the stabbing implement caused major vascular damage leading to major blood loss. This caused Mr Mansoor to lose consciousness and have difficulty breathing. Air may have travelled into the vascular system causing cardiac arrest. While Dr Charlwood noted that severance of the carotid artery is not necessarily fatal, in the absence of medical intervention death would be expected to occur within a matter of minutes. Dr Charlwood also noted the absence of any blood running down into Mr Mansoor’s lungs; this further supported her conclusion that Mr Mansoor experienced a rapid death.
Abdomen injury
Dr Charlwood noted a second potentially fatal wound to the lower area of Mr Mansoor’s abdomen. She noted damage to Mr Mansoor’s bowel and renal artery. This wound, which was 11cm to 12cm deep, had caused Mr Mansoor’s intestines to protrude outside of his stomach. While a protrusion can occur naturally when the stomach is opened as a result internal pressure, Dr Charlwood accepted that the movement of a knife could exacerbate a protrusion.
Dr Charlwood explained that this particular wound could have been caused by either two separate stab wounds or a single stab wound combined with a twisting motion. As she was unable to determine exactly where the knife had entered the area, she could not offer a conclusion as to the directionality of the wound. The resistance of the skin in the area and the lack of any bone or cartilaginous damage did however indicate to Dr Charlwood that at least a mild degree of force was required to inflict the wound. She accepted that the injury in isolation would have led to death within a matter of minutes.
When questioned as to the sequence of the injuries, Dr Charlwood noted that it was feasible that the injury to Mr Mansoor’s abdomen came before the injuries to the neck. This was supported by the associated haemorrhaging in the renal artery area which would not be expected if the arteries and airways in the neck had already been severed. Dr Charlwood indicated that the lack of haemorrhage around the major wounds supported a conclusion that the totality of the injuries were inflicted in fairly quick succession.
While I do not find it necessary to describe each injury in detail, I have considered the other injuries noted by Dr Charlwood. These included:
·Injury no. 7: two wounds to the anterior left cheek which had caused bone and cartilage damage to the nose and the fracturing of the facial skeleton.
·Injury no. 9: an incised “slash” wound to the back left of Mr Mansoor’s scalp which had cut through the entirety of the skin. This wound had produced a 2cm long fracture line and would have required the use of severe force.
·Injury no. 2: an injury to the left side of Mr Mansoor’s neck characterized as a “slash-type” wound which had sliced through the full thickness of the skin to partially divide the underlying muscle.
·Injury no. 3: an injury to the left lateral upper neck measuring 9.5cm in length, and 2cm to 3cm in depth. Dr Charlwood concluded that the configuration of the wound suggested at least two or three contacts, with a further two contacts towards the shallow part of the wound.
·Defensive injuries to Mr Mansoor’s fingers in the form of lacerations, consistent with Mr Mansoor’s hands having come into contact with the blade of the knife.
·Fracturing to Mr Mansoor’s ribs, ranging from the second to the seventh rib on the left side and the second rib on the right side. Dr Charlwood noted that this injury is often observed after attempts of resuscitation and requires severe force.
I found Dr Charlwood to be a reliable and honest witness, and I accept her evidence.
In my view, the totality of the injuries sustained by Mr Mansoor demonstrate what can only be characterized as a brutal and ferocious attack. By virtue of his plea of manslaughter and his admission when giving evidence that he killed Mr Mansoor, I find that the accused inflicted the fatal wounds to Mr Mansoor’s neck and abdomen. I am satisfied that he did so using a black-handled kitchen knife whereby he administered stab, slash and chop wounds to various areas of Mr Mansoor’s body. While I accept that each individual injury may have required a varying degree of force, I accept the prosecution’s submission that the fractures to Mr Mansoor’s neck and facial areas would have required a severe degree of force.
While Dr Charlwood considered that the major injury to the neck was more consistent with having been inflicted from a position either behind or to the side of Mr Mansoor, she was not able to give an opinion as to the position of the accused at the time the other injuries were inflicted. As Dr Charlwood indicated, the injuries to the back of Mr Mansoor’s body could still be accounted for if Mr Mansoor was still alive and had engaged in some movement.
Blood pattern analysis of Brevet Sergeant McKenzie
Brevet Sergeant McKenzie is attached to the Forensic Response Section of the police force and has experience in blood pattern analysis. His qualifications were not challenged. I accept that he was qualified to give expert evidence. Blood pattern analysis is an opinion explaining the mechanism that produced a particular pattern of blood observed on a surface. Factors considered include the location, the size and shape of a blood pattern and the distribution of blood.
McKenzie attended at the Broadacres Drive address on the night of 3 March 2017 and examined the crime scene for blood patterns and bloodstains. McKenzie examined three areas of the property for bloodstaining. These were the northern wall (B1), the area on the door (B2) and the southern wall (B3). Photographs were taken of these areas.[26]
[26] Exhibit P9; Exhibit P10.
As mentioned earlier, there are no eyewitnesses to the stabbing of Mr Mansoor. The accused gave evidence about what he alleged occurred. The evidence of Brevet Sergeant McKenzie is relevant to an assessment of the accused’s version of events.
Northern wall (B1)
Photograph 2 of Exhibit P10 shows blood spatters found on the northern wall of the hallway. A blown-up copy of photograph 2 was admitted as Exhibit P19.
McKenzie identified four significant patterns located on the northern wall (B1). These stains were all located between the edge of the door and the phone socket, an area measured to be 1.5m wide and 1.2m high.
He described the first of these patterns as a group of transfer stains located along the timber skirting between a telephone socket and the main door (marked 1). These transfer stains were produced by something bloodstained coming into direct contact with the skirting. One particular stain, located above the skirting board towards the door, he accepted may have been caused by more than one contact. He also noted the presence of one or two smaller stains in the middle of the large stain. He considered that something had been moved through the large stain after it had been produced. McKenzie could not determine from the stain for how long the object would’ve been in contact with the wall. Within the larger area of this staining, McKenzie also noted three lines parallel to each other across the skirting board. He said that these were consistent with bloodstained fingers that transfer blood onto an object, but that there was no visible friction ridge detail which would confirm that fingerprints produced the stains.
McKenzie observed a pattern of three large elliptical blood drops on the bottom of the timber skirting (marked 2). He explained that these drops had what are known as “blood flows” that require a large volume of blood in the drop to produce them. In his opinion, the three stains were most consistent with projected bloodstaining, most likely produced from a breached artery. McKenzie stated that the elliptical spatters contained tails which allowed him to reach a conclusion as to the direction the blood was travelling. The “tails” indicated the direction of travel of the blood; he concluded that the blood was travelling from the front door on the right, up the wall to the left. McKenzie concluded that the blood causing this spatter must have come from an area west of the wall, but could not determine whether the blood came from above or below its location.
A pattern of over 100 circular and elliptical blood spatters (marked 3) was located approximately 550mm above the floor. The directional features in the spatters indicated that the blood was travelling upward from right to left. This pattern extended 1m in length and 200mm wide. McKenzie explained that the presence of “feathering” in the pattern would have required a significant amount of blood to produce the flows. McKenzie stated the near-circular spatters were located towards the bottom and the elliptical stains were up and towards the west of those stains; this indicated that the blood source had to be at a height of 550mm above the floor or below that height. There was nothing about the appearance of this stain which allowed McKenzie to comment about what might have produced it. McKenzie indicated that the majority of the spatters in pattern 3 appear to have been from one event as they radiated from a single area.
McKenzie observed a significant bloodstain to the right of the phone socket (marked 4). He described this pattern as a linear pattern of elliptical spatters. The directional indicators in the spatters suggested the blood was travelling downward at a slight right to left at the time of impact with the wall. McKenzie stated that this pattern could be described as a “cast off pattern”. A “cast off pattern”, McKenzie explained, is produced when an object with liquid blood on it is swung through the air and a centrifugal force flings the blood off onto a surface. McKenzie observed 20 elliptical spatters in this area which appeared to have travelled from the top area of the skirting board to a height of 300mm above the board. McKenzie said that the stain was located adjacent to the neck area of where Mr Mansoor was lying. McKenzie concluded that if this blood pattern had been deposited at the time Mr Mansoor was lying in the position as found, the pattern would have been produced by an object being swung in a downward motion towards Mr Mansoor’s neck. McKenzie could not determine how close or far away the object would have been as it was being swung.
McKenzie concluded from looking at the range of stains on the northern wall that all of the blood-letting events took place between the doorway and the phone socket. McKenzie could not offer an opinion as to what position Mr Mansoor was in when the majority of the blood spatters were deposited. He could however determine that Mr Mansoor was lying on the floor at the time patterns 1 and 4 were produced. He also clarified that pattern 4 indicated an object had been swung through the air towards Mr Mansoor on the floor. He stated that he did not consider that pattern 3 could have been produced while Mr Mansoor was on the floor, but accepted that Mr Mansoor could have been bent over, on his knees or sitting on his behind.
These are significant conclusions when considering the accused’s version of events and in particular his evidence that he only pushed the knife in the direction of Mr Mansoor’s neck.
Door

However, his hand action, when talking to the interpreter, is more relevant. His gesture is inconsistent with his evidence. While this demonstration was not as clear as the one he gave on the night, it is still significant.
Analysis of the accused’s evidence
Given that the defence is provocation it is a necessary step for me to consider whether, at least as a reasonable possibility, Mr Mansoor uttered a provocative comment. The only evidence that he may have done so comes from the accused.
The accused is an admitted liar. In evidence, he admitted telling lies to the police. He also admitted telling lies to Sim Sim when Sim Sim visited him in prison. For the reasons I expressed earlier, I consider that he has not told me the truth about many of the matters surrounding the incident. In particular I find that he has not told me the truth about how the incident during which Mr Mansoor was killed unfolded.
Consistent through all versions the accused has given is his attitude that he is more sinned against than sinning. While it is correct that he now admits killing Mr Mansoor and accepts causing all the injuries, he still insists that the killing was an “accident”. I have considered carefully whether the accused is deliberately telling lies or whether he is confabulating to protect himself from the harsh reality of what he did to Mr Mansoor. For the reasons articulated earlier I consider that his evidence about the incident is false and knowingly so. However on either basis, the evidence of the accused as to how, physically, the incident unfolded is simply unreliable and cannot be accepted even as a reasonable possibility.
I have already discussed my criticisms of his evidence. Without repeating all of the arguments, I reject his evidence relating to the fight for the following main reasons:
·The number and extent of the lies he admits to telling. The fact that he was prepared to lie to the police and then to Sim Sim damages his credibility. I accept that his admitted lies to the police, when blaming Kumar and others, do not, when taken alone, provide a reason to totally reject his evidence.
·I accept the evidence of Dr Charlwood, in conjunction with the evidence of Brevet Sergeant McKenzie and Mr Silenieks, that the accused was standing alongside or behind Mr Mansoor when some of the injuries were inflicted. This is inconsistent with the “account” given by the accused.
·I accept the evidence of Mr Silenieks that some of the blood spatter indicates that Mr Mansoor was kneeling or bent over when some of injuries were inflicted.
·The accused’s version of events cannot explain the extent of the injuries suffered by Mr Mansoor. I accept the evidence of Dr Charlwood that severe force was required to inflict the injury/injuries to Mr Mansoor’s neck. The evidence of the accused could not account for the fragmentation of the C3-C4 vertebrae or the fractured cheekbone.
·The assertion that he never intended to cause harm to Mr Mansoor is contradicted by the number and location of the injuries suffered by Mr Mansoor. It is clear that the accused intended to kill Mr Mansoor. His version of events about just “pushing the knife” cannot be correct.
·His evidence about how he caused the stomach injury to Mr Mansoor is quite simply ridiculous and unbelievable.
·The suggestion that Mr Mansoor attempted to “recruit” the accused to IS is ridiculous and unbelievable. It is part of his denigration of Mr Mansoor so as to shift at least some moral blame away from himself. The first time this was mentioned was in his evidence. It was not suggested by him to Sim Sim after the event or during the gaol conversation that was recorded. It is clearly a false statement by the accused to give Mr Mansoor some possible reason for attacking him. Further his grandiose claims that he was going to the police to report Mr Mansoor for his “betrayal” of this country lacked credibility.
·His reasons for blaming Kumar and others to the police were unconvincing. I do not accept that his lies to the police were told because he wanted in some way to punish Kumar and others for “causing” the problem. He was simply trying to get out of what he had done. In addition, he has told other lies as well; for example, to Sim Sim in the gaol conversation.
·As discussed earlier in these reasons the gestures made by the accused to the police (when blaming Kumar and others) during the interviews mentioned are consistent with the forensic evidence and demonstrate that he has a clear memory of what he actually did. His explanation given in the witness box is knowingly false. He has lied to me on oath.
·I do not accept that he always intended to tell the police that he killed Mr Mansoor.
·He manipulated the crime scene to make it look consistent with an attack by Kumar and others. His suggestion that Mr Mansoor told him to leave knives (and other weapons) outside the house lacked credibility. His statement that he broke the bottles because he kicked them as he was sad Mr Mansoor was dead lacked credibility. His explanation for throwing the knife away in the paddock also lacked credibility. I reject his evidence that the knife, with which he stabbed Mr Mansoor, was in the vicinity of the hallway on the instructions of Mr Mansoor.
·Even allowing for language difficulties the accused was clear in his evidence. There is a manifest inconsistency between the injuries suffered by Mr Mansoor and the version of events given by the accused; his version does not support his assertion that he lost control. He asserted a loss of control without being able to explain, in any way, what he did that demonstrated the loss of control. I reject the submission that the differences can be explained by his limited English and that some of the issues are conceptual. His evidence cannot be explained by assuming that the accused meant that the incident was not premeditated.
·His lies to Sim Sim while in prison. Further, there is no mention of Mr Mansoor attempting to recruit him to IS.
I reject the accused’s version of how Mr Mansoor was killed even as a reasonable possibility. I totally reject the accused’s version that in some way Mr Mansoor attacked him and threatened to kill him. I reject any suggestion that the accused was acting in self-defence. The only evidence that Mr Mansoor threatened to kill the accused comes from the accused and I reject it.
Did Mr Mansoor utter a provocative comment?
Self-evidently, if no provocative comment was uttered by Mr Mansoor provocation does not arise. The only evidence that such a comment was uttered comes from the accused.
To support his submission that I should find, at least as a reasonable possibility, that such a comment was uttered, Mr Boucaut SC relied upon the injuries suffered by Mr Mansoor. Mr Boucaut SC pointed to the location and number of injuries. He submitted that they indicated a frenzied attack consistent with someone who had “lost control”.
Of course, the injuries are also consistent with a loss of temper, not necessarily a loss of control. They are also consistent with a loss of control without a provocative comment having been uttered.
I accept that rejecting the accused’s version of how the killing unfolded, physically, does not necessarily mean that he was not provoked by something said by Mr Mansoor. To put that another way, I have to consider whether it is at least a reasonable possibility that he was provoked by Mr Mansoor but that the killing of Mr Mansoor occurred in a totally different manner to that described by the accused.[37]
[37] The case is distinguishable from R v Baden Clay [2016] HCA 35 as here the accused gave evidence that he was provoked.
The evidence is overwhelming that the accused considered Mr Mansoor was being deceptive. Mr Mansoor was, close to the time the killing occurred, on the telephone. There are comments made by the accused to Sim Sim where he admits he killed him for that reason. As already discussed, Sim Sim, when giving evidence, said the following:
QThat during that conversation Kabil had told you that he had killed Mohammed but you thought he was joking.
AYes.
QDuring that conversation did he give you any explanation as to why he had killed Mohammed.
ANo.
QYou said there were other times when you were not at work when Kabil told you that he had killed Mohammed, is that right.
AYep.
QDuring the other conversations did he give you an explanation or a reason why he had killed Mohammed.
AYep.
QCan you tell me what explanation Kabil gave to you.
ABriefly I’m telling him and he was telling I found out that he is betraying us, so that why he killed him.
QAre they the words that Kabil used to you.
A“He is cheating us”.
QDid Kabil tell you what he meant by “he is cheating us”.
ABriefly telling that I’m telling you that what he meant to say: he was telling that for the snake is showing the head and for the fish he is showing the tail.
HIS HONOUR
QI presume that means, Mr Boucaut, he is being deceptive.
XXN
QDid Kabil explain in what way Mohammed was cheating him.
AWhatever that information he gathered from us and he is going to the other party and manipulating as well and whatever information gathered from them and he is misleading us, so because he didn’t want to solve the problem smoothly.
(Underlining added)
Sim Sim spoke to Mr Mansoor that afternoon on the telephone. He did not suggest that there was a problem between the accused and Mr Mansoor. Indeed, generally the evidence, on the prosecution case, suggested that the accused and Mr Mansoor were on reasonably friendly terms. The CCTV footage of the two men obtaining alcohol does not suggest any tension between them. This is inconsistent with the suggested IS conversations. I do accept however, on Sim Sim’s evidence, that the accused was fearful that Kumar and his friends may come to the Broadacres Drive address that day or evening.
I agree with the submission of Mr Boucaut SC that the evidence demonstrates that the fight occurred against the background that the accused believed Mr Mansoor was possibly talking to Kumar and others shortly before he killed Mr Mansoor, and that Mr Mansoor was plotting with them to inflict some violence on the accused. I do not consider it likely that Mr Mansoor was indeed plotting with Kumar and others, but it may be that the accused had a genuine, but mistaken, belief that he was. This belief is consistent with his calls to the 000 operator and also his suggestion that Mr Mansoor was betraying him.
Further, during the course of the discussion with Sim Sim while the accused was in prison, the accused said that he and Mr Mansoor were drunk. He went to the back of the house and was smoking a cigarette when he heard Mr Mansoor on the telephone. He heard him say:[38]
“one person is missing and the other person is here so if you come…(inaudible) and put it in the bush. One’s gone and only one is here.”
…
I heard this conversation and got really angry. I went up to him and asked him…(inaudible) “how would you kill me?”
[38] Exhibit P28, p 2.
The person missing was likely a reference to Sim Sim.
The accused then gave an account of the fight that was similar in part to the version he gave in evidence. There were some differences but I reject this account of the fight for the same reasons set out earlier. I do not intend to repeat those reasons.
The fact that the accused may have considered that Mr Mansoor was being deceptive is clearly a reason for him killing Mr Mansoor, unprovoked. This is so particularly given the accused was in a heightened state of anxiety due to what had occurred the evening before. The accused had been drinking, and on his own admission he was affected by the alcohol, which may have affected his perception of what Mr Mansoor was doing. His fear that Kumar may attend the Broadacres Drive address, on the invitation of Mr Mansoor, is sufficient for him to have lost his self-control and killed Mr Mansoor.
However, the fact that the conversations are consistent with an unprovoked killing does not mean that the accused was not provoked.
The first time the accused mentioned the possibility that Mr Mansoor uttered a provocative comment was to Sim Sim. Whether that was in a separate conversation to the one in prison that was recorded is unclear.
In the prison conversation, the topic arose in an unusual way. The accused gave Sim Sim a version of how the fight started and finished. The emphasis was on Mr Mansoor’s action in talking on the telephone and telling Kumar and the others, as discussed earlier, that “only one is here”. He said he confronted Mr Mansoor because of what he overheard in that conversation.[39] He described the fight and then said to Sim Sim “there is nothing wrong on my side. I did nothing wrong”.
[39] Exhibit P28.
Later in the conversation, Sim Sim informed the accused that he had spoken to the accused’s wife. It is at that time that the accused said:[40]
You tell them that it was a mistake. You know, he finally said something inappropriate about my wife, about ripping her clothes off.
[40] Exhibit P28.
The topic came up in a rather off-hand manner; he had not included it in his original story to Sim Sim.
I have rejected, totally, the accused’s version of how the fight, physically, unfolded. The question arises whether I can accept any of his evidence about what occurred in those few minutes before Mr Mansoor died.
The accused is an admitted liar. He has lied to me on oath. I have found he does remember how he physically attacked Mr Mansoor. I have found that he deliberately falsified the crime scene after killing Mr Mansoor, including breaking the front window, breaking bottles and, significantly, leaving a knife near Mr Mansoor’s car. This was done to deceive the police.
The accused then lied to me on oath about Mr Mansoor ordering him to put the knives outside. I have rejected his evidence about that. The question naturally arises as to where the accused obtained the knife he used to kill Mr Mansoor. I have rejected his evidence that it was left outside. It follows that it was not “available” outside when, on the accused’s evidence, the fight with Mr Mansoor began. The accused has told an entirely false story woven around the crime scene which he falsified. He has lied to me about the conduct of Mr Mansoor that afternoon. I have found that Mr Mansoor did not attempt to recruit the accused to IS.
It is against that background that I have to consider the question of whether Mr Mansoor uttered a provocative comment.
I have carefully considered all of the submissions of Mr Boucaut SC. After careful consideration I reject the accused’s evidence on this point. I am unable to accept, even as a reasonable possibility, that Mr Mansoor made a provocative comment. The accused has not told me the truth about this.
I find that the accused lost his temper and probably lost his self-control because he considered Mr Mansoor was betraying him, not because of any provocative comment Mr Mansoor made. He attacked Mr Mansoor from behind or to the side with a knife that he obtained from elsewhere, not a knife left around to be used if Kumar and his friends attended.
In my view, the question of provocation does not arise. That is sufficient for me to reject the question of provocation and find the accused guilty of murder.
However, as the matter was fully argued before me, I will turn to consider the question of provocation. I will assume, contrary to my finding, that Mr Mansoor did utter the provocative words alleged by the accused.
What were the provocative words?
The accused gave evidence that Mr Mansoor said words to the effect of “remove all her clothing. Give me your wife and I’ll fuck her”. I will accept for the purpose of this analysis that, although these may not be the precise words uttered, something similar was said.
The gravity of the provocative words in Sri Lankan culture
The influence of Sri Lankan Tamil culture upon the accused is a matter which is relevant to the question of provocation. Understanding the different groups that make up Sri Lankan culture and the history of the Civil War also play a part in explaining the tensions that may have existed between various parties in this matter.
Each of the Sri Lankan witnesses who gave evidence for the prosecution at the trial were asked questions about their opinion as to the gravity of an insult (to a person about his wife) such as “remove all her clothes and give me your wife and I’ll fuck her” in Sri Lankan culture. While there were differences in the witness’ evidence, they were consistent in stating that the words are highly insulting. Sim Sim described them as the biggest insult a person can make in Sri Lankan culture. Many of them also gave evidence that an insult of this sort may provoke violence due to its severity. Theepan distinguished that the insults are even more offensive if said in Sri Lanka as the family members are nearby, or if the insults come from a friend.
Dr Kamal Ganeshamuthali Nathan gave evidence for the accused. He is a retired academic in the field of mechanical engineering. Dr Nathan presented as an objective Tamil witness in this case having never met any of the people involved in this matter and only knowing about the case in the most general of terms. He is a highly educated man who has studied and worked for many years outside of Sri Lanka. Dr Nathan has not spent a significant amount of time in Sri Lanka since he emigrated to Singapore in 1963, with the exception of a year from 1970 to 1971 and a few trips in recent years. His involvement with Sri Lankan culture has for many years been limited to communities of Sri Lankans living outside of Sri Lanka. He has substantial experience and contact with those communities.
Dr Nathan supported the evidence given by the other Sri Lankan witnesses that the Civil War conflict was between the Tamils and the Sinhalese. He noted that the Muslims sat on the fence during the war so that they could benefit from both communities. He said that in Sri Lanka there is little to no integration between the Tamils and the Muslims and they tended to live in separate enclaves. When asked about the insulting words allegedly said by Mr Mansoor, Dr Nathan said they were highly insulting and would make a Tamil person angry. He also said that a Tamil person may choose to use these words to deliberately provoke someone.
I accept his evidence, although it was of more limited weight than those of the prosecution witnesses. However, his evidence was consistent with the other witnesses.
I am satisfied that comments of the nature alleged are highly offensive within Sri Lankan culture. I accept that the type of insult uttered here can be described as “highly insulting”, a “grave” insult and one that may well provoke violence in Sri Lankan culture.
Law of provocation
In South Australia, provocation is governed by the common law. The partial defence of provocation operates to reduce murder to manslaughter. Before the question of provocation arises, the accused must form an intention to kill or to do grievous bodily harm. Once provocation is raised it is for the prosecution to prove beyond a reasonable doubt that the accused was not acting under provocation at the time of the killing. The prosecution bears the onus of proof at all times. It must exclude the partial defence of provocation beyond a reasonable doubt. I have found here that the accused formed, at the relevant time, the intention to kill Mr Mansoor.
There are two limbs to the partial defence of provocation. These are generally referred to in the authorities as the subjective test and the objective test. If the prosecution excludes beyond a reasonable doubt either limb, the partial defence of provocation will not have been established and the accused, on the facts of this case, will be guilty of murder.
First limb of provocation (subjective limb)

For the partial defence of provocation to be made out (bearing in mind the onus of proof) it must be a reasonable possibility that the accused subjectively lost control because of the provocation and formed the intention either to kill or to cause grievous bodily harm to Mr Mansoor. This is the first limb of provocation (‘the subjective test’). Assuming that Mr Mansoor uttered the provocative words I would accept that the evidence established, at least as a reasonable possibility, that provocation actually caused the accused to lose his self-control. The frenzied nature of the attack supports the loss of control. While the accused himself gave evidence that he lost control, his inability to explain what he meant by that statement, coupled with his description of the incident which did not demonstrate a loss of control, means I cannot accept his evidence on this point. However, the frenzied nature of the attack is sufficient to raise at least as a possibility that the words uttered caused him to lose his self-control. It is also a reasonable possibility that he inflicted the fatal injuries whilst not in control of himself and before he regained his composure.
On the assumption that the words were uttered the prosecution have not negatived this limb of provocation beyond a reasonable doubt.
Second limb of provocation (objective limb)
As I have discussed earlier I consider the second limb on the assumption that Mr Mansoor uttered an insult to the accused about the accused’s wife at the start of, or during, the fight. It must then be established, at least as a reasonable possibility, that an ordinary person subject to an insult of the same gravity could (might) have lost their self-control to such an extent as to act as the killer has acted, that is to say, to form the intention to kill or cause grievous bodily harm and to apply force of the same nature and extent which the accused actually applied. This is the second limb of provocation (‘the objective test’).[41] As the Court in Stingel v The Queen held, the provocative words or conduct must provoke the ordinary person not merely to some retaliation but to retaliation “to the degree and method and continuance of violence which produces the death”.[42]
[41] Lindsay v The Queen (2015) 255 CLR 272, 278.
[42] (1990) 171 CLR 312, 325.
The determination of whether the prosecution has negatived the subjective limb of provocation is a question of fact. Whether the prosecution has negatived the objective limb is a question of opinion or “evaluative fact”.[43]
[43] Lindsay v The Queen (2015) 255 CLR 272, 279.
When determining the question of whether the accused subjectively did lose self-control I have to assess the gravity of the provocative conduct and/or words of Mr Mansoor, taking into account the relevant characteristics of the accused as they might affect the degree of insult or offence to him.[44] Then applying that degree of insult or offence, if the provocation was of such gravity that somebody with at least the minimum degree of self-control necessary to live with others in a society could (might) have been provoked and then acted in the way in which the accused did, then the ordinary person test has been satisfied.
[44] Masciantonio v The Queen (1995) 183 CLR 58, 67 (Brennan, Deane, Dawson and Gaudron JJ).
The test involving the hypothetical ordinary person is an objective one. The test lays down the minimum standard of self-control required by the law. The characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused.[45] The ordinary person test does not take into account the accused’s idiosyncrasies, personal attributes or past history, with the sole exception of age. The ordinary powers of self-control are powers of self-control not diminished by unusual excitability, aggressiveness, anxiety or stress.[46] Where appropriate to do so because of the accused’s immaturity, the ordinary person may be taken to be of the accused’s age.
[45] Masciantono v The Queen (1995) 183 CLR 58, 66.
[46] Stingel v The Queen (1990) 171 CLR 312, 329.
The ordinary person is one who possesses what the trier of fact might consider to be the minimum standard of self-control accepted by law and in turn, civilised society.[47] I take into account that we currently live in a multi-cultural society. Mr Boucaut SC submitted that our society now includes persons from Sri Lanka and I should take that into account. At a level of abstraction that is correct. However, the ordinary person test does not require a minute analysis of the “make up” of Australian society. It is a multicultural society with citizens now from most, if not all, countries. I am not required to tally the number of persons from various countries and allocate some particular weight to that number.
[47] Lindsay v The Queen (2015) 255 CLR 272, 278 (Nettle J); Masciantonio v The Queen (1995) 183 CLR 58, 66.
The ordinary person is not the average person nor the reasonable person.[48]
[48] Stingel v The Queen (1990) 171 CLR 312, 332.
In Dutton v The Queen this court concluded that the common law in Australia had developed so that “words alone” were capable of constituting provocation.[49] Gummow J in Green v The Queen[50] observed that the apparent common law position, since the decision in Moffa v The Queen,[51] is that the words be of a “violently provocative” or “exceptional character”.[52]
[49] (1979) 21 SASR 356, 357 (King CJ) and 376 (Cox J).
[50] (1997) 191 CLR 334, 375-376.
[51] (1977) 138 CLR 601.
[52] For a discussion of the meaning of those expressions see R v Kumar [2002] VSCA 139 per Eames J (although, in the final decision he was in the minority)
When considering the words allegedly uttered by Mr Mansoor I must consider the circumstances in which they were uttered.
I remind myself that it does not fall to the accused to prove that he acted under provocation. The onus rests with the prosecution to prove beyond reasonable doubt that the killing was unprovoked. The prosecution must satisfy me beyond reasonable doubt that the accused did not lose his self-control or, if he did, that an ordinary person of the age of the accused could (might) not have lost his self-control in the circumstances or, if he did, that he would not have gone on to kill the deceased in that manner. If the prosecution fails to satisfy me that the killing was not provoked, the prosecution has failed to satisfy me as to the charge of murder and the accused is to be found guilty of the lesser charge of manslaughter.
The accused’s age, sex, race, physical features, personal attributes, personal relationships and past history are all relevant to an assessment of the gravity of a particular wrongful act or insult. I accept that it was, in Sri Lankan culture, a grave insult. For the purpose of this analysis I assume at least as a reasonable possibility, that due to the gravity of the insult and taking into account the accused’s personal characteristics and the circumstances he found himself in that night, he lost his self-control and killed Mr Mansoor before he regained his self-control.
Is it at least a reasonable possibility that an ordinary person subject to an insult of the same gravity could (might) have lost their self-control to such an extent as to act as the accused has acted? That is to say, to form the intention to kill or cause grievous bodily harm and to apply force of the same nature and extent which the accused actually applied.[53]
[53] Lindsay v The Queen (2015) 255 CLR 272, 278.
That is a matter for me to determine as the trier of fact.
The function of the ordinary person test is to provide an objective and uniform standard of the minimum powers of self-control which must be observed before provocation may reduce what would otherwise be murder to manslaughter.[54] The characteristics of the ordinary person are those of a person with ordinary powers of self-control. They are not the characteristics of the accused, apart from age.
[54] Lindsay v The Queen (2015) 255 CLR 272.
The provocative conduct here is words alone. I have rejected, even as a reasonable possibility, that Mr Mansoor threatened to kill the accused or that the question of self-defence arose. Exactly what occurred is, of course, only known to two people and one of them is dead. As already discussed I have found that the fight occurred against the background that the accused believed that Mr Mansoor was possibly talking to Kumar and others, shortly before he died, and was plotting with them to inflict some violence on the accused. I do not consider it likely that Mr Mansoor was indeed plotting with Kumar and others, but it may be that the accused had a genuine, but mistaken, belief that he was. It is against those circumstances that I assume the provocative words were uttered.
The question for me is whether the provocation offered by the deceased was, in the circumstances in which the accused found himself, such that an ordinary person could (might) have reacted in the way in which the accused did and formed the intention to kill or cause grievous bodily harm and to apply force of the same nature and extent which the accused actually applied. The ordinary person is sober.
There was no ability to carry out the provocative comment either then or in the immediate future. It was purely an insult, albeit a grave one. The ordinary person is to be taken as being the same age as the accused. However, here immaturity is not a factor. The ordinary person is one who possesses what I, as the trier of fact, consider to be the minimum standard of self-control accepted by law and in turn, civilised society. I accept that the ordinary person is not the average person nor the reasonable person.
I am unable to find, even as a reasonable possibility, that an ordinary person subject to an insult of the same gravity, in the circumstances the accused found himself, could (might) have lost their self-control to such an extent as to act as the accused has acted, that is to say, to form the intention to kill and to apply force of the same nature and extent which the accused actually applied.
In my view, the prosecution has excluded the objective limb of the test beyond a reasonable doubt. Even if I accepted the accused’s assertion that Mr Mansoor uttered provocative words, the prosecution has accordingly negatived provocation beyond a reasonable doubt on the second limb of provocation.
Conclusions
I find the following matters proved beyond a reasonable doubt:
1The act or acts of the accused caused the death of the deceased;
2The act or acts of the accused were voluntary, that is to say they were the result of the exercise of the will;
3The act or acts of the accused which caused the death were done with the intention to kill or cause grievous bodily harm to the deceased. Indeed, the nature and number of the wounds are such that I find beyond reasonable doubt that the accused intended to kill the accused. The accused had that intention at the time of the stabbing; and
4For reasons already expressed, self-defence does not arise on the facts. There was no lawful defence or excuse that applied to the killing.
The elements of murder have been established beyond a reasonable doubt. I then turn to the question of provocation.
For the reasons I have already expressed I find beyond a reasonable doubt that Mr Mansoor did not utter any provocative comment(s).
Even if he did I find that the prosecution has negatived the second limb of provocation beyond a reasonable doubt.
I find the accused guilty of murder.